New Directions New Directions Mental Health (Scotland) Act 1984 Report on the of Review the You can get further copies of the full report from: The Stationery Office Bookshop Mail, Telephone and Fax Orders Report on the Review of the 71 Lothian Road Edinburgh EH3 9AZ Phone: 0870 606 5566 Mental Health (Scotland) Act 1984 Fax: 0870 606 5588 Also available on computer disc from: Public Health Division 1.4 Room 3es St Andrews House Regent Road Edinburgh EH1 3DG Phone: 0131 244 2451 Fax: 0131 244 5076 £25.00 Web site: www.scotland.gov.uk/millan Related publications: An Evaluation of Section 18 of the Mental Health (Scotland) Act 1984. Review of Literature Relating to Mental Health Legislation. Copies available from The Stationery Office Bookshop at £5.00 each. Designed and produced by Tactica Solutions 1/2001 B17767 Chairman: Rt. Hon. Bruce Millan SCOTTISH EXECUTIVE REVIEW OF THE MENTAL HEALTH (SCOTLAND) ACT 1984 Laid before the Scottish Parliament by the Scottish Ministers January 2001 SE/2001/56 REVIEW OF THE MENTAL HEALTH (SCOTLAND) ACT 1984 CONTENTS Membership of the Committee ix-x Terms of Reference xi Summary of work xii-xiii Acknowledgements xiv Introduction to the Report xv-xviii SECTION 1 FRAMEWORK OF A NEW MENTAL HEALTH ACT Chapter 1 - The need for reform Introduction 3 Changes in mental health care 3 - 5 Changes in legislation 5 - 7 Problems with the 1984 Act 7 - 9 Chapter 2 - The scope of a new Mental Health Act Is a Mental Health Act necessary? 10 - 11 Views of consultees 11 What the new Act should contain 12 - 13 Interaction with the Adults with Incapacity (Scotland) Act 13 - 15 The name of the Act 15 Chapter 3 - Principles of the new Act Introduction 16 Benefits of a statement of principles 17 - 18 A framework for principles 18 Recommended principles 18 - 21 Applying the principles 21 - 22 Alternative suggestions 22 Chapter 4 - Who would be covered by the new Act Mental disorder in the 1984 Act 25 - 26 Retention of mental disorder 26 - 28 Alternative approaches 28 - 29 Mental Illness 29 - 30 i REVIEW OF THE MENTAL HEALTH (SCOTLAND) ACT 1984 Learning disability 30 - 38 Personality disorder 39 - 45 Exclusions 45 - 46 Changes in category 46 - 47 Use of the Mental Health Act definition in other legislation 47 - 48 SECTION 2 COMPULSORY TREATMENT Chapter 5 - Grounds for compulsion The current law regarding medical consent 51 - 52 Compulsory treatment for mental disorder: current legislation 52 - 53 The basis for new criteria 53 - 54 Impaired judgement 54 - 58 Benefit from treatment 58 - 59 Risk 59 - 61 Treatability 61 - 63 Conclusion 63 Chapter 6 - Compulsory interventions Current provisions regarding detention 64 - 65 Treatment and plans of care 66 - 67 Compulsory measures in the community 67 - 70 Our proposals for a community order 70 - 73 Role of the tribunal in compulsory intervention 73 - 75 Moving between hospital based orders and community orders 75 Failure to comply with community order 76 - 77 Leave of absence 78 - 79 Community care orders 79 Chapter 7 – Initiating and approving compulsion Role of relatives 80 - 81 Role of general practitioners 82 - 86 Role of psychiatrists 86 - 88 Role of mental health officers 88 - 92 Role of nurses 92 - 94 Chapter 8 - Duration, reviews and appeals Current legislative position 95 - 96 Detention under current provisions 96 - 97 Nurse’s holding power 97 - 98 Emergency detentions 98 - 99 Short term detentions 99 - 101 Long term compulsory measures 102 - 104 The Mental Welfare Commission’s power of discharge 104 Discharge by the responsible medical officer 104 - 105 The hospital managers’ powers of discharge 106 The nearest relative’s power of discharge 106 - 107 ii CONTENTS The relationship between emergency, short term and long term detention 107 - 111 Information and support for the patient 111 - 113 Chapter 9 - Forum for compulsory measures Current statutory provisions 114 - 115 Sheriff court hearings 115 - 119 The tribunal system in England and Wales 119 - 125 Consultation 125 - 127 Key features of an improved system 127 - 130 Proposals for a new tribunal 130 - 134 Chapter 10 - Treatments and interventions requiring particular safeguards The current position 135 - 136 What makes treatments ‘special’? 136 - 137 The safeguards for special treatments 137 Treatments which should require consent and a second opinion (present s97) 138 - 139 Treatments which should require consent or a second opinion (present s98) 139 - 143 Adding to the list of special treatments 143 The nature of the second opinion 143 - 144 The duration of the second opinion 144 - 145 Urgent treatment 145 Children and young people 145 - 147 Chapter 11 – Other provisions relating to patients subject to compulsion Introduction 148 Transfer of patients within Scotland 148 - 151 Communications with and by patients 151 - 156 Patients who are absent without leave 156 - 157 Searches 157 - 158 Sharing information regarding patients 158 - 160 SECTION 3 - RIGHTS OF USERS AND CARERS Chapter 12 - Rights of informal patients Background 163 - 164 Incapable patients 164 - 165 ‘Coercive’ voluntary admissions and treatment 165 - 166 Restraint 166 - 167 Exceptional treatments 167 - 168 Chapter 13 - Service users’ rights to assessment and services Rights to assessment 169 - 171 Assessment of patients subject to compulsion 171 - 172 Assessment with a view to compulsion and/or other services 172 - 174 iii REVIEW OF THE MENTAL HEALTH (SCOTLAND) ACT 1984 Right to services 174 Reciprocity and patients subject to compulsion 174 - 175 General rights to services 175 - 179 Inter-agency working 179 - 180 Charging for services 180 - 181 Chapter 14 - Individual and collective advocacy Rights to individual advocacy 182 - 189 Rights to collective advocacy 190 - 191 Chapter 15 - Advance statements What are advance statements? 192 - 194 Current legal effect of advance statements 194 - 195 Future legal force of advance statements 195 - 197 How the new system would work 197 - 201 Chapter 16 - Rights of informal carers Introduction 202 The nearest relative in the 1984 Act 202 - 204 Proposals for the ‘named person’ 204 - 209 Right to information and support 209 - 213 Carers’ needs 213 - 216 Chapter 17 - Civil and social rights Voting rights 217 Housing and benefits 217 - 220 Stigma 220 - 221 Visiting rights 221 - 222 Chapter 18 - Groups with specific needs Physical and sensory disability 223 - 224 Children and young people 224 - 228 Gender issues and the rights of parents with mental disorder 228 - 229 Ethnic minorities 229 - 232 SECTION 4 - SAFEGUARDS FOR VULNERABLE PEOPLE Chapter 19 - Protection of vulnerable adults Vulnerable adults 235 - 239 Ill treatment and neglect 239 - 241 Protection for staff and carers 242 Obstruction 242 - 243 Vulnerable witnesses 243 - 244 Chapter 20 - Police powers and responsibilities Place of safety 245 - 249 iv CONTENTS Chapter 21 - Protection from sexual exploitation and abuse The current position 250 - 251 The need for special legislation 251 - 253 A new framework 254 - 259 Problems with the general law 259 - 260 Sex Offenders Act 260 Chapter 22 - The regulation of private hospitals The regulation of private hospitals in the 1984 Act 261 The Scottish Commission for the Regulation of Care 261 - 265 The role of the Mental Welfare Commission 265 SECTION 5 - THE MENTAL WELFARE COMMISSION Chapter 23 - Mental Welfare Commission Background 269 Composition of the Commission 270 - 273 Organisational arrangements 273 - 275 Accountability of the Commission 275 - 276 Role and duties of the Commission 276 - 294 SECTION 6 - OFFENDERS WITH MENTAL DISORDER Chapter 24 - The legislative framework Introduction 297 The interaction of the Criminal Procedure (Scotland) Act and the 1984 Act 298 - 299 Chapter 25 - Unconvicted persons with mental disorder Introduction 300 Diversion from prosecution 300 Untried prisoners 300 - 305 Acquitted persons with recommendations for mental health disposals 305 - 306 Chapter 26 - Convicted offenders with mental disorder Assessment of disposals 307 - 308 Remand for inquiry into mental condition 309 Hospital orders 309 - 311 Interim hospital orders 311 - 312 Hospital directions 313 - 315 Guardianship 315 Probation with a condition of treatment 315 - 316 Community orders 317 Transfer from prison to hospital 318 - 319 Treatment in prison 320 v REVIEW OF THE MENTAL HEALTH (SCOTLAND) ACT 1984 Chapter 27 - High risk patients Introduction 322 The MacLean Committee 322 - 324 Restricted patients 324 - 325 Ministers’ role in relation to restricted patients 325 - 326 Issues raised in consultations 326 - 327 Our proposals 327 - 334 Criteria for admission to the State Hospital 334 - 336 Appeals against levels of security 336 - 339 Prisoners transferred to hospital with restriction directions 339 - 340 Chapter 28 - The Mental Health (Public Safety and Appeals) (Scotland) Act 1999 Introduction 341 The provisions of the 1999 Act 341 - 342 Our initial response to the legislation 342 - 343 Who does the Act affect? 343 The public safety test 343 - 345 Entry and exit criteria 345 - 346 The 1999 Act and prisoners 346 - 347 Other provisions of the 1999 Act 347 Those a new Act will not cover 347 - 348 Chapter 29 - Insanity and diminished responsibility Background 349 - 355 Conclusions as to insanity 355 - 357 Diminished responsibility 357 - 358 Chapter 30 - Appropriate adults The appropriate adult scheme 359 - 361 Training 362 SECTION 7 - INTERNATIONAL AND CROSS BORDER ISSUES Chapter 31- Cross border issues Transfer within the United Kingdom 365 - 371 Overseas patients 372 - 373 Chapter 32 - Hague Convention on the International